to pay a collateral sum upon request, as where the defendant promised to pay a certain sum upon request, if he failed to perform an award; in which case an actual request must be alleged and proved. In all other cases, where the award is for money which is not paid, the burden of proof is on the defendant to show that he has paid the sum awarded, the bringing of the action being a sufficient request.1 The averment of a promise to pay will be supported by evidence of an agreement to abide by the decision of the arbitrators.2 § 77. Performance. Where the thing to be done by the defendant depends on a condition precedent, to be performed by the plaintiff, such performance must be averred and proved by the plaintiff. And if by the terms of the award acts are to be done by both parties on the same day, as where one is to convey land, and the other to pay the price, there, in an action for the money, the plaintiff must aver and prove a performance, or an offer to perform, on his part, or he cannot recover; for the conveyance, or the offer to convey, from the nature of the case, was precedent to the right to the price.3 8.78. Defence. In defence of an action on an award, or for not performing an award, the defendant may avail himself of any material error or defect, apparent on the face of the award; such as excess of power by the arbitrators; 4 defect of execution of power, as by omitting to consider a matter submitted; 5 (a) want of 1 Birks v. Trippet, 1 Saund. 32, 33, and n. (2), by Williams. If the reference is general, and the arbitrator directs the payment to be made at a certain time and place, this direction may be rejected as surplusage. Rees v. Waters, 4 D. & L. 567; 16 M. & W. 263. 2 Efner v. Shaw, 2 Wend. 567. 8 Hay v. Brown, 12 Wend. 591. Morgan v. Mather, 2 Ves. 18; Fisher v. Pimbley, 11 East, 189; Macomb v. Wilbur, 16 Johns. 227; Jackson v. Ambler, 14 Johns. 96. See also Commonwealth v. Pejepscot Propr's, 7 Mass. 399. 5 Mitchell v. Stavely, 16 East, 58; the omission is material to the award. 2 Halst. 187; Doe v. Horner, 8 Ad. & Bean v. Farnam, 6 Pick. 269. But not unless (a) In submissions to arbitration a clause is often inserted, called the "ita quoad" clause, which is, in effect, a condition that the award shall not be valid unless it decides all the questions submitted to it; whether a partial award, under a submission which has no such clause in it, is valid or not, depends on the construction of the submission. The earlier decisions were in favor of the valid ity, but Willes, J., in Bradford v. Bryan, Willes, 270, says: "Were it not for the cases, I should be of opinion that when all matters are submitted, though without such condition, all matters must be determined, because it plainly was not the intention of the parties that some matters only should be determined, and that they should be at liberty to go to law for the rest." The prevalent rule is thus stated by Morse, on Arbitration, p. 342. "The court will look at the language of the submission certainty to a common intent;1 (a) or plain mistake of law as allowing a claim of freight, where the ship had never broken ground; 2 and the like. In regard to corruption or other misconduct or mistake of the arbitrators in making their award, the common law seems not to have permitted these to be shown in bar of an action at law for non-performance of the award; but the remedy must be pursued in equity. But in this country, in those States where the jurisdiction in equity is not general, and does not. afford complete relief in such cases, it has been held, that, if arbitrators act corruptly, or commit gross errors or mistakes in making their award, or take into consideration matters not submitted to them, or omit to consider matters which were submitted, or the award be obtained by any fraudulent practice or suppression of evidence by the prevailing party, the defendant may plead and prove any of these matters in bar of an action at law to enforce 1 Jackson v. Ambler, 14 Johns. 96. 2 Kelly v. Johnson, 3 Wash. 45. See also Gross v. Zorger, 3 Yeates, 521; Ross v. Overton, 3 Call, 309; Morris v. Ross, 2 H. & M. 408; Greenough v. Rolfe, 4 N. H. 357; Ames v. Milward, 8 Taunt. 637. 8 Watson on Arbitrations, p. 153, in 11 Law Lib. 79; Shepherd v. Watrous, 3 Caines, 166; Barlow v. Todd, 3 Johns. 367; Cranston v. Kennedy, Johns. 212; Van Cortlandt v. Underhill, 17 Johns. 405; Kleine v. Catara, 2 Gallis. 61; Sherron v. Wood, 5 Halst. 7; Newland v. Douglas, 2 Johns. 62. In practice, where no suit is pending, arbitrations are now generally entered into under the statutes, enacted for the purpose of making the submission a rule of court; and in all cases where the submission is made a rule of court, the court will generally administer relief, wherever it could be administered in equity. in its every part, and, from a consideration of the whole, will determine the matter of intent. If the reasonable construction appears to be that the parties intended to have everything decided, if anything should be, then a decision of all matters submitted will be imperatively required; but if anything in the submission indicates a contrary purpose, a partial award will be sustained. (a) Clark v. Burt, 4 Cush. (Mass.) 396; Ross v. Clifton, 9 Dowl. Prac. Cas. 360. An award defining a boundary will be defeated by proof that there were no such monuments as are referred to in the award, for the purpose of locating the boundary. But a want of certainty in the award in this respect alone will not affect another portion of the same award, determining that one party had trespassed upon the land of the other, and awarding to the latter party his damages and costs, though the trespass was upon the same land to which the disputed boundary had refer ence. Giddings v. Hadaway, 28 Vt. 342. An award is not valid which provides for the payment, by one of the parties to the submission, of a certain sum, after making deductions therefrom of sums not fixed by, or capable of being ascertained from, the award. Fletcher v. Webster, 5 Allen (Mass.), 566. In Waite v. Barry, 12 Wend. (N. Y.) 377, Sutherland, J., said: "It is essential to the validity of an award, that it should make a final disposition of the matters embraced in the submission, so that they may not become the subject or occasion of future litigation between the parties. It is not indispensable that the award should state, in words or figures, the precise amount to be paid. If nothing remain to be done, in order to render it certain and final, but a mere ministerial act, or an arithmetical calculation, it will be good." Cf. Wakefield v. Llanelly Railway & Dock Company, 11 Jur. N. s. 456; Tidswell, in re, 33 Beav. 213; Ellison v. Bray, 9 L. T. N. s. 730. the award.1 (a) And though arbitrators, ordinarily, are not bound to disclose the grounds of their award,2 yet they may be examined to prove that no evidence was given upon a particular subject; 3 or, that certain matters were or were not examined, or acted on by them, or that there is mistake in the award; and also as to the time and circumstances under which the award was made,5 and as to any facts which transpired at the hearing. (b) Fraud .in obtaining the submission may be given in evidence under the plea of non assumpsit, or nil debet, by the common law." (c) 1 Bean v. Farnam, 6 Pick. 269; Brown v. Bellows, 4 Pick. 183; Parsons v. Hall, 3 Greenl. 60; Boston Water Power Co. v. Gray, 6 Metc. 131; Williams v. Paschall, 3 Yeates, 564. 2 Ante, vol. i. § 249. 8 Martin v. Thornton, 4 Esp. 180. 4 Roop v. Brubacker, 1 Rawle, 304; Alder v. Savill, 5 Taunt. 454; Zeigler v. Zeigler, 2 S. & R. 286. If, upon a submission of "all matters in difference," the parties omit to call the attention of the arbitrator to a matter not necessarily before him, they cannot object to the award on the ground that he has not adjudicated upon it. Rees v. Waters, 16 M. & W. 263. 5 Woodbury v. Northy, 3 Greenl. 85; Lincoln v. Taunton Manuf. Co., 8 Cush. 415. Gregory v. Howard, 3 Esp. 113. 7 Sackett v. Owen, 2 Chitty, 39 (a) Strong v. Strong, 9 Cush. (Mass.) 560; Lincoln v. Taunton Copper Manuf. Co., 8 Id. 415; Leavitt v. Comer, 5 Id. 129; French v. Richardson, Id. 450; Briggs v. Smith, 20 Barb. (N. Y.) 409; French v. New, Id. 481; Taylor v. Sayre, 4 Zabr. (N. J.) 647; Tracy v. Herrick, 25 N. H. 381. See also Morgan v. Smith, Mees. & W. 427; Angus v. Redford, 11 Id. 69; Cramp v. Adney, 3 Tyrwhitt, 370. An award made in pursuance of a reference under a rule of court will not be set aside for alleged mistakes of law on the part of the referees, unless they have themselves been misled, or unless they refer questions of law to the court. Fairchild v. Adams, 11 Cush. (Mass.) 549; Bigelow v. Newell, 10 Pick. (Mass.) 348. When all claims and demands between the parties are submitted to arbitration, it will be intended that the arbitrators have decided all matters submitted to them, although they do not so state in their award, unless the contrary appears. Tallman v. Tallman, 5 Cush. (Mass.) 325; Clement v. Comstock, 2 Mich. 359. An award made twelve years after the submission is invalid, unless sufficient reason is shown for the delay. Hook v. Philbrick, 23 N. H. 288. The refusal of an arbitrator to examine witnesses is sufficient misconduct on his part to induce the court to set aside his award, though he thinks he has sufficient evidence without them. Phipps v. Ingram, 3 Dowl. 669; Halstead v. Seaman, 82 N. Y. 27. (b) They may testify to any facts tending to show that the award is void for legal cause, Strong v. Strong, 9 Cush. (Mass.) 560, as that they did not suppose the reference was final, Huntsman v. Nichols, 116 Mass. 521. The testimony of referees is admissible to identify matters submitted to then, and to show that they acted on them; but a written submission or award cannot be varied or explained by parol. Buck v. Spofford, 35 Me. 526. Declarations by an arbitrator, some days after making and publishing his award, are incompetent to impeach it. Hubbell v. Bissell, 2 Allen, (Mass.) 196. (c) It has been considered, in courts of law in some States, contrary to the gen eral practice, that all defences to awards, where the submission and award were in writing and under seal, for matters not apparent upon the papers, must be pursued in equity. And this rule has been considered to rest, as to mistake of the arbitrators, and irregularity of conduct by them, upon the same ground that courts have refused to set aside a written contract between parties in a trial at law, upon the alleged grounds that, by mistake, the contract did not read as it was intended to. And in regard to the conduct of the arbitrators, it has been considered, in some of the cases certainly, that the arbitrators were § 79. Revocation. The defendant may also show, that the authority of the arbitrators was revoked before the making of the award. And the death of either of the parties to a submission at common law, before the award made, will amount to a revocation;1 unless it is otherwise provided in the submission.2 Whether bankruptcy is a revocation, is not clearly settled. Where the submission is at common law, and even where it is under the statute, but is not yet made a rule of court, it seems that either party may revoke the authority of the arbitrators; though he may render himself liable to an action for so doing. (a) But if the submission is by two, a revocation by one only is void. If the 1 Edmunds v. Cox, 2 Tidd's Pr. 877; s. c. 3 Doug. 406; s. c. 2 Chitty, 422; Cooper v. Johnson, 2 B. & Ald. 394; Potts v. Ward, 1 Marsh. 366; Toussaint v. Hartop, 7 Taunt. 571. But if the submission is under a rule of court, and the action survives, it is not revoked by death. Bacon v. Crandon, 15 Pick. 79. 2 Macdougall v. Robertson, 2 Y. & J. 11; s. c. 4 Bing. 435. 3 Marsh v. Wood, 9 B. & C. 659; Andrews v. Palmer, 4 B. & Ald. 450; Ex parte Remshead, 1 Rose, 149. Skee v. Coxon, 10 B. & C. 483; Milne v. Gratrix, 7 East, 608; Clapham v. Higham, 1 Bing. 27; 7 Moore, 703; Greenwood v. Misdale, 1 McCl. & Y. 276; Brown v. Tanner, Id. 464; s. c. 1 C. & P. 651; Warburton v. Storer, 4 B. & C. 103; Vynior's Case, 8 Co. 162; Frets v. Frets, 1 Cow. 335; Allen v. Watson, 16 Johns. 205; Fisher v. Pimbley, 11 East, 187; Peters v. Craig, 6 Dana, 307; Marsh v. Bulteel, 5 B. & Ald. 507; Grazebrook v. Davis, 5 B. & C. 534, 538; Brown v. Leavitt, 13 Shepl. 251; Marsh v. Packer, 5 Washb. 198. Robertson v. McNeill, 12 Wend. 578. necessary parties to any proceedings based upon such a charge. Mere mistakes, or irregularity, short of positive corruption, might not require any explanation at the hands of the arbitrators. And it is difficult to perceive how, in any case, they are proper parties to a litigation, in regard to the validity of the award, and we doubt whether, upon principle, any corruption in the arbitrator or judge, unless with the procurement or privity of the prevailing party, is any defence to an award, in a court of law. And if the corruption of the arbitrator be with the privity of the party, it is fraud, and is equally a defence at law and in equity, as well to special ties as simple contracts. But this is perhaps not yet determined as to awards. See Woodrow v. O'Connor, 28 Vt. 776. An award which is operative as a final and conclusive adjustment of all matters between the parties, is not vitiated by an order requiring them to execute mutual releases. Shepherd v. Briggs, 28 Vt. 81. An award is rightly rejected, if, previously to the selection of the arbitrators, a portion of them made an ex parte examination of the matter afterwards submitted to them, at the request of one of the parties, to whom the substance of the result at which they arrived was known, and these facts were not communicated to the other party. So, also, if they decided upon the matters submitted to them before giving notice of a hearing to one of the parties. Conrad v. Massasoit Insurance Co., 4 Allen (Mass.), 20. See Wilson v. Concord Railroad Company, 3 Allen (Mass.), 194. See Tidswell, in re, 33 Beav. 213; Brook et al., in re, 15 C. B. N. s. 403; 10 Jur. N. s. 704; Proctor v. Williams, 8 C. B. N. s. 386; Angus v. Smythies, 2 F. & F. 381. It seems that arbitrators may decline to hear counsel. Macqueen, in re, 9 C. B. N. s. 793. (a) A submission to arbitrators, if it is not founded on any consideration, may be revoked by the party submitting at any time before the award is delivered; but it is not so when it is made under an agreement founded on sufficient consideration. Paist v. Caldwell, 75 Pa. St. 161. When the submission has been made a rule of court, it cannot be revoked, though not founded on any consideration. Lewis's Appeal, 91 Pa. St. 359. reference is made an order of a court of equity, the revocation of the authority of the arbitrators is a high contempt of the court, and, upon application of the other party, will be dealt with accordingly. If a feme sole, having entered into a submission to arbitration, takes a husband, the marriage is a revocation of the submission; but it is also, like every other revocation, by the voluntary act of the party, a breach of the covenant to abide by the award 2 § 80. Disability. The defendant may also show, in defence, that one or more of the parties to the submission was a minor, or a feme covert, and that therefore the submission was void for want of mutuality.3 So, he may show that the arbitrators, before making their award, declined that office; for thereupon they ceased to be arbitrators. (a) § 81. Pleadings. Where the action is assumpsit upon a submission by parol, the plea of non assumpsit, where it is not otherwise restricted by rules of court, puts in issue every material averment. Under this issue, therefore, the defendant may not only show those things which affect the original validity of the submission, or of the award, such as infancy, coverture, want of authority in the arbitrators, fraud, revocation of authority, intrinsic defects in the award, and, if there is no other mode of relief, extrinsic irregularities also, such as want of notice and the like; but he may also show anything which at law would defeat and destroy the action, though it operate by way of confession and avoidance, 1 Haggett v. Welsh, 1 Sim. 134; Harcourt v. Ramsbottom, 1 Jac. & Walk. 511. 2 Charnley v. Winstanley, 5 East, 266; Andrews v. Palmer, 4 B. & Ald. 252. 3 Cavendish v. — 1 Chan. Cas. 279; Biddell v. Dowse, 6 B. & C. 255. But it is not a good objection, that one was an executor or administrator only, for he has authority to submit to arbitration. Coffin v. Cottle, 4 Pick. 454; Bean v. Farnam, 6 Pick. 269; Dickey v. Sleeper, 13 Mass. 244. Relyea v. Ramsay, 2 Wend. 602; Allen v. Watson, 16 Johns. 203. (a) In debt upon an award of arbitrators, it is proper to show by parol, under the general issue, that the arbitrators had no power to make and publish their award at the time and in the manner they did; and therefore, under that plea, the question may be raised, whether an award is valid which was made on Sunday morning, after a hearing completed just before twelve o'clock on Saturday night, and parol evidence may be introduced to show that it was so made. A judgment rendered on Sunday is void at common law; but an award is not a judgment, but the consum mation of a contract between the parties to the submission; and if the submission make no provision for an award on Sunday, and the parties complete the hearing before the arbitrators previous to twelve o'clock on Saturday night, and then cease to exercise any control as to the time of making the award, its validity as to them will not be affected either at common law, or under the Vermont statute, regulating the observance of the Sabbath, by the fact that the arbitrators make and publish their award at three o'clock on Sunday morning. Blood v. Bates, 31 Vt. 147. |